DS617: United States — Anti-dumping Measure on Oil Country Tubular Goods from Argentina
Argentina submitted its second request for the establishment of a panel to review the final anti-dumping (AD) measure imposed by the United States on OCTG from Argentina as well as certain provisions of US legislation regarding cumulation of imports in assessing injury caused by imports in AD and countervailing (CV) duty investigations. Argentina’s first request was not accepted by the US at a DSB meeting on 19 September. Argentina said efforts to reach a mutual solution with the US were not successful and that it was therefore reiterating its request for a panel.
The United States said it was disappointed that Argentina has chosen to move forward with a request for the panel and that its measures were fully consistent with its WTO obligations. The US added it remains willing to engage with Argentina to seek a positive resolution to the dispute.
The DSB agreed to the establishment of the panel. Türkiye, Japan, the European Union, the Republic of Korea, Brazil, Canada, China, Russia and Ukraine reserved their third party rights to participate in the panel proceedings.
DS618: European Union — Countervailing duties on imports of biodiesel from Indonesia
Indonesia submitted its first request for the establishment of a panel to determine whether countervailing duties imposed by the European Union on imports of biodiesel from Indonesia are in line with WTO rules. Indonesia said it considers the measures inconsistent with the obligations of the EU with regards to the WTO’s Agreement on Subsidies and Countervailing Measures and the General Agreement on Tariffs and Trade (GATT) 1994.
Indonesia noted it requested WTO dispute consultations with the EU on 11 August to discuss its claims, with the two sides meeting on 4 October, but unfortunately the consultations failed to produce a mutually acceptable solution, thus prompting Indonesia’s request for a panel.
The European Union said it was not ready to accept the establishment of a panel. The EU said it firmly believes the measures taken are fully justified and that it is confident its actions will be declared in line with WTO law.
The DSB agreed to revert to this matter should a requesting member wish to do so.
DS605: Dominican Republic — Anti-dumping Measures on Corrugated Steel Bars
Costa Rica said it was surprised with the Dominican Republic’s decision to file an appeal against the dispute panel’s finding in case DS605. The panel report was circulated to WTO members on 27 July, with the Dominican Republic filing its appeal on 18 September. Costa Rica said the panel ruled decisively that the Dominican Republic acted in a manner inconsistent with its WTO obligations under the Anti-Dumping Agreement and the GATT 1994 by imposing a 15% anti-dumping duty on steel bar imports originated in Costa Rica.
Costa Rica said that on several occasions it presented the Dominican Republic with a proposed bilateral agreement to make use of arbitration under Article 25 of the Dispute Settlement Understanding which would be equivalent to an appeal, but that the Dominican Republic did not reply to these efforts. Costa Rica called on members to work together and avoid appeals “into the void” becoming a vehicle to block the effective exercise of rights upon which a panel has already made a pronouncement.
The Dominican Republic said it presented in its appeal detailed justifications for the serious errors of law or legal interpretations made by the panel in its report, which must be corrected. The Dominican Republic reiterated its right to appeal before a permanent body as provided by WTO agreements and expects that the prompt reestablishment of the Appellate Body will allow for the review and correction of these errors and the quick resolution of this dispute.
The European Union and Canada took the floor to comment, noting that an appeal is a right under WTO rules but noting that exercising this right when the Appellate Body no longer functions effectively means that proceedings are blocked. Canada called on the Dominican Republic to become a party to the Multi-party interim appeal arrangement (MPIA), a temporary alternative means available to securing an appeals review while the Appellate Body remains non-functioning.
DS597: United States — Origin Marking Requirement
The United States once again addressed the panel ruling in DS597. The US referred back to its previous statements regarding its position on essential security and its reason for placing this item on the DSB agenda. It then updated the DSB on what it said were factual developments regarding the situation in Hong Kong, China which reinforces US concern with those findings. The US reiterated that it fundamentally disagrees with the panel’s approach, which suggests a state ought to defer consideration of its essential security interests until after a breakdown in relations with another member, and that, in order to prevent further undermining of the WTO, members need to clarify and adopt a shared understanding of the essential security exception.
Hong Kong, China criticized the United States for putting this item for the sixth time on the DSB agenda despite the fact the US appealed the panel report. It criticized the US for failing to avoid repetition of issues as set out under Rule 27 for DSB meetings, and strongly objected to the US characterization of recent developments in Hong Kong, China.
China also said it had serious concerns about the US bringing this matter up again at the DSB. Should the US have concerns about how the panel ruled on the national security exception, it should work with members to restore the appeal mechanism, which is the proper place to correct possible errors of the panel, China said.
Discussions concerning dispute settlement reform
The Chair of the DSB, Ambassador Petter Ølberg of Norway, noted that dispute settlement reform was one of the topics discussed at the Senior Officials Meeting earlier in the week. He recalled that, overwhelmingly, senior officials strongly supported the ongoing informal process being carried out in Geneva by technical experts. The senior officials recognize the value of the process, and the progress made so far, in order to achieve a tangible and meaningful outcome at the WTO’s 13th Ministerial Conference (MC13) next February.
At the same time, he said, the senior officials were cognizant of the different views expressed on the issue of the timing of the formalization of this process. He also recalled that in expressing their political support for the dispute reform work, senior officials indicated the following elements on the way forward: first, the need to focus on addressing the dispute settlement challenges with a sense of urgency; second, the need to take into account the dispute settlement interests of all members; and third, the need to uphold the WTO member-driven approach as well as to ensure full participation, inclusiveness and transparency, including by facilitating the effective participation of developing and least developed country members.
Marco Molina, Deputy Permanent Representative of Guatemala to the WTO, reported to members in his personal capacity as convenor of the informal process. He noted that he briefed members on the state of play in the talks at a Heads of Delegation meeting on 10 October as well as at the 23-24 October Senior Officials Meeting.
Mr Molina noted three things from the Senior Officials Meeting: first, senior officials strongly supported the ongoing informal process that is being carried out in Geneva by technical experts and that they recognized the value of the process and the progress made so far to achieve a tangible and meaningful outcome at MC13. Second, senior officials were cognizant of the different views expressed on the issue of the timing of the formalization of the reform process. There was general support for the idea of formalization, although views diverged as to when this could occur, he noted. Finally, senior officials encouraged all members to actively participate in the ongoing process on dispute settlement reform with the view to achieving tangible outcomes at MC13 in line with the political guidance provided by them.
In terms of progress, Mr Molina said members are about to finalize the first review of a consolidated draft text, before introducing the comments received by experts into a revised version. He said participants also expect to incorporate another chapter into the text for members’ consideration and that interest-based conversations will continue on the issues pending agreement. Mr Molina said he continues to reach out to delegations and meet with experts, either individually, in small groups or in regional groups, in order to seek their opinions, promote convergence, and ensure that the consolidated draft text, as it continues to evolve, is representative of the views of all WTO members.
Thirty-four members then took the floor to comment. A number of developing country members referred to communications from the African Group and Indonesia concerning the need to take better account of the needs of developing and least developed country members in the reform discussions. They reiterated concerns with the pace and frequency of the discussions and said the process needed to be more transparent and inclusive, with a number calling for the process to be formalized by moving the discussions to the DSB and General Council.
Others, both developed and developing countries, said that the process conducted by Mr Molina was already transparent, inclusive and participatory, and has been improved by allowing for simultaneous interpretation of the discussions and translation of texts into the WTO’s three official languages. Several cautioned against moving the discussion prematurely from its current informal basis to formal discussion in the DSB or General Council, arguing the informal nature was key to the progress achieved so far.
Appellate Body appointments
Guatemala, speaking on behalf of 130 members, introduced for the 68th time the group’s proposal to start the selection processes for filling vacancies on the Appellate Body. The extensive number of members submitting the proposal reflects a common concern over the current situation in the Appellate Body which is seriously affecting the overall WTO dispute settlement system against the best interest of members, Guatemala said for the group.
The United States repeated that it does not support the proposed decision to commence the appointment of Appellate Body members as its longstanding concerns with WTO dispute settlement remain unaddressed. The United States is seeking a system that is fair and revitalizes the agency of members to settle their disputes, that preserves the policy space in WTO rules for members to address their critical interests — most notably on matters of essential security – and that supports, rather than undermines, the WTO’s role as a forum for discussion and negotiation to help members address new challenges. The US said it is committed to working towards a fundamentally reformed and improved system.
More than 20 delegations then took the floor in support of the proposal, with one speaking on behalf of a group of members. Many noted the commitment made by ministers at the WTO’s 12th Ministerial Conference to engage in discussions aimed at securing a fully functioning dispute settlement system by 2024 and pledged their support for securing an outcome, with some citing the 13th Ministerial Conference in February as the target. They welcomed the political support expressed by senior officials at their 23-24 October meeting in Geneva for the ongoing informal discussions on dispute reform. Several also made reference to the MPIA as a temporary alternative means available to securing an appeals review while the Appellate Body remains non-functioning.
Guatemala said that on behalf of the 130 members it regretted that for the 68th occasion members have not been able to launch the selection processes. Ongoing conversations about reform of the dispute settlement system should not prevent the Appellate Body from continuing to operate fully, and members shall comply with their obligation under the Dispute Settlement Understanding to fill the vacancies as they arise, Guatemala said for the group.
Surveillance of implementation
The United States presented status reports with regard to DS184, “US — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan”, DS160, “United States — Section 110(5) of US Copyright Act”, DS464, “United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea”, and DS471,“United States — Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China.”
The European Union presented a status report with regard to DS291, “EC — Measures Affecting the Approval and Marketing of Biotech Products.”
Indonesia presented its status reports in DS477 and DS478, “Indonesia — Importation of Horticultural Products, Animals and Animal Products.”
Next meeting
The next regular DSB meeting will take place on 27 November.
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